1. The case originated in an application (no.
49156/99) against the Republic of Turkey lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Turkish national, Mr
Bekir Yıldız (“the applicant”), on 26 March 1999.

2. The applicant was represented by Mr Çiçek,
a lawyer practising in Ankara. In the instant case, the Turkish Government
(“the Government”) did not designate an Agent for the purposes of
the proceedings before the Court.

3. On 27 April 2004 the Court decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the application
at the same time as its admissibility.

4. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and lives in
Ankara.

6. The applicant was the mayor of the
Sincan District in Ankara at the time of the events. In January 1997,
the Culture and Education Department of the Sincan District Council,
which was in charge of organising public activities and events during
religious and national days, prepared a thirty-day programme for the
month of Ramadan. The draft programme was submitted to the applicant
for his approval. Upon his authorisation, the organising committee started
the necessary preparations.

7. One of the events, which had been foreseen
for 31 January 1997, was called the “Jerusalem Night”. The aim of
this event was to protest against the genocide and oppression of Muslims
in Israel and Palestine. The Ambassador to Iran and a journalist called
Nureddin Şirin were invited to the event as speakers. Furthermore,
a five-minute play was written for that evening. The play took the form
of a conversation between a father and his son about life in Palestine
and the struggle of the Palestinian people.

8. The event was announced months in
advance and representatives of several embassies as well as important
personalities living in the district were invited. The meeting hall
was decorated with posters of martyrs who had given their lives for
the liberation of Jerusalem. The applicant made the opening speech.

9. On 6 February 1997 the applicant was taken
into police custody. He was accused of disseminating propaganda in support
of an armed illegal organisation, namely the Hezbollah, and of provoking
hatred and hostility on the basis of a distinction between races and
regions.

10. In his statement taken at the police
station, the applicant stated that the “Jerusalem Night” was organised
as part of a thirty-day programme during the month of Ramadan and it
was an activity of the Sincan District Council. He explained that the
posters portrayed Muslim leaders who had given their lives for the liberation
of Jerusalem. The applicant denied having connections with any illegal
organisation.

11. On 13 February 1997 the applicant was brought
before the public prosecutor. During his questioning, he repeated the
statements he had made at the police station. He pointed out that his
speech did not contain any elements that would provoke hatred amongst
those who did not wear headscarves.

12. On the same day the applicant was brought
before the investigating judge attached to the Ankara State Security
Court. In his statement taken by the investigating judge, the applicant
explained that he supported the secular system and did not approve of
the regime in Iran. He stated that he had no connections with any terrorist
organisation. He was subsequently placed in detention on remand.

13. In an indictment dated 7 March 1997, the public
prosecutor attached to the Ankara State Security Court initiated criminal
proceedings against the applicant. It was alleged that he had disseminated
propaganda in support of an armed, illegal organisation and that his
actions had amounted to incitement to hatred and hostility on the basis
of distinctions between races and regions. The prosecution called for
the applicant to be sentenced pursuant to Articles 169 and 312 of the
Criminal Code and Article 5 of the Prevention of Terrorism Act.

14. Before the Ankara State Security Court, which
was composed of three judges including a military judge, the applicant
contested the charges against him. He argued that the “Jerusalem night”
was part of the social activities of the Sincan District Council and
that he did not intend to incite people to hatred and enmity. He had
emphasised the importance of unity and solidarity during his speech.
He stated that he was joking when he said that the Shariah would be
forcibly injected into secularists.

15. On 2 July 1997 the applicant was released
from detention on remand pending trial.

16. Before delivering its judgment, the Ankara
State Security Court firstly established the status of Hezbollah in
Turkey. In this respect, it relied on a report prepared by the National
Intelligence Organisation (MIT), dated 30 April 1997, which referred
to the structure and goals of Hezbollah. The court further based itself
on another report prepared by the General Directorate of Security, dated
24 October 1996. In this report, it was stated that Hezbollah had been
involved in many terrorist attacks throughout Turkey. Finally, the court
examined a report from a book called “the Eurasia File” (Avrasya Dosyası), which was published by the International
Relations and Strategic Studies Centre. In the light of all the evidence
before it, the court rejected the applicant's assertions that Hezbollah
was not active in Turkey and that it was solely a national movement
which operated in Palestine.

17. On 15 October 1997 the Ankara State Security
Court concluded that the applicant had aided and abetted a terrorist
organisation, by making propaganda for it and by inciting persons to
hatred and enmity by discriminating against class, religion and region.
It found the applicant guilty as charged and sentenced him to four years
and seven months' imprisonment. The court further disbarred the applicant
from public service for three years.

18. The applicant appealed to the Court of Cassation.
In his submissions to the Court of Cassation, the applicant defended
himself against the charge of incitement to hatred and enmity, contrary
to Article 312 of the Criminal Code, and argued that he had called for
unity and solidarity in his speech.

19. On 21 September 1998 the Court of Cassation
dismissed the applicant's appeal, upholding the Ankara State Security
Court's assessment of evidence and its reasons for rejecting the applicant's
defence.

II. THE RELEVANT DOMESTIC LAW

20. A full description of the domestic law may
be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6
OF THE CONVENTION

21. The applicant complained that he had not received
a fair trial by an independent and impartial tribunal due to the presence
of a military judge on the bench of the Ankara State Security Court.
In this connection, he invoked Article 6 of the Convention.

A. Admissibility

22. The Government argued under Article
35 of the Convention that the applicant's complaint in respect of the
independence and impartiality of the Ankara State Security Court must
be rejected for failure to comply with the six-month rule.

23. The Court reiterates that it has already examined
similar preliminary objections of the Government in respect of non-compliance
with the six-month rule in the past and has rejected them (see Özdemir v. Turkey,no. 59659/00, § 29, 6 February 2003, and Doğan and Keser v. Turkey, nos. 50193/99 and 50197/99, § 17,
24 June 2004). The Court finds no particular circumstances in the instant
case which would require it to depart from its findings in the above-mentioned
cases.

25. In the light of its established case law (see
amongst many authorities, Çıraklar v. Turkey, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII), and in view of
the materials submitted to it, the Court considers that the case raises
complex issues of law and fact under the Convention, the determination
of which should depend on an examination of the merits. The Court therefore
concludes that this part of the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other grounds
for declaring it inadmissible have been established.

B. Merits

26. The Government submitted that after the constitutional
amendment of 1999 military judges could no longer sit on such courts.
They also stated that the State Security Courts had been abolished as
of June 2004 by Law No. 5190.

27. The Court notes that it has examined similar
cases in the past and has concluded that there was a violation of Article
6 § 1 of the Convention (see Özel, cited above, §§ 33-34, and Özdemir, cited above, §§ 35-36).

28. The Court sees no reason to reach a different
conclusion in this case. It is understandable that the applicant who
was prosecuted in a State Security Court for disseminating propaganda
in support of an armed, illegal organisation should have been apprehensive
about being tried by a bench which included a regular army officer and
member of the Military Legal Service. On that account, he could legitimately
fear that the Ankara State Security Court might allow itself to be unduly
influenced by considerations which had nothing to do with the nature
of the case. In other words, the applicant's fear as to the State Security
Court's lack of independence and impartiality can be regarded as objectively
justified (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1573, § 72 in fine).

29. In the light of the foregoing the Court finds
that there has been a violation of Article 6 § 1 of the Convention
in this respect.

II. ALLEGED VIOLATION OF ARTICLE
10 OF THE CONVENTION

30. The applicant submitted under Article 10 of
the Convention that his conviction following his speech had constituted
an unjustified interference with his freedom of expression.

31. The Government raised a preliminary objection
on the ground of non-exhaustion of domestic remedies. They contended
that the applicant had failed to raise his complaint before the national
courts.

32. The Court reiterates that under the terms
of Article 35 § 1 of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted, according to the generally
recognised rules of international law. This condition is not met by
the mere fact that an applicant has submitted his case to the various
competent courts. It is also necessary for the complaint brought before
the Court to have been raised, at least in substance, during the proceedings
in question (see, among others, Çakar v. Turkey, no. 42741/98, § 30, 23 October 2003,and Karakaya v. Turkey
(dec.), no. 62619/00, 4 May 2004).

33. In the instant case, the Court observes that
at no time did the applicant rely on or raise any arguments in respect
of his right to freedom of expression. The Court notes that throughout
the criminal proceedings, the applicant only denied the allegations
against him, claiming that he had had no intention to incite people
to hatred and enmity, and put forward arguments which were based solely
on domestic law and did not raise the matter of freedom of expression.

34. Even assuming that the national courts were
able, or even obliged, to examine the case of their own motion under
the Convention, this could not dispense the applicant from relying on
the Convention in those courts or from advancing arguments to the same
or like effect before them, thus drawing their attention to the problem
he intended to submit subsequently, if need be, to the Court (see Van Oosterwijck
v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 19
§ 39, Ahmet
Sadık v. Greece, judgment of 15 November 1996, Reports 1996-V, § 33, and Aydar v. Turkey (dec.), no. 32207/96, 1 July 2003).

35. In view of the above considerations, the Court
holds that this part of the application must be rejected under Article
35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

36. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

37. The applicant requested the Court to award
him 158,932 euros (EUR) in respect of pecuniary damage and EUR 150,000
in respect of non-pecuniary damage.

The Government submitted that these claims were
excessive and unacceptable.

38. On the question of pecuniary damage, the Court
considers in the first place that it cannot speculate as to what the
outcome of proceedings compatible with Article 6 § 1 would have been.
The Court cannot therefore allow the applicant's claims in this respect.

39. The Court further considers that the finding
of a violation of Article 6 constitutes in itself sufficient compensation
for any non-pecuniary damage suffered by the applicant in this respect
(see Incal,
cited above, p. 1575, § 82, and Çıraklar, cited above, § 45).

40. Where the Court finds that an applicant has
been convicted by a tribunal which is not independent and impartial
within the meaning of Article 6 § 1, it considers that, in principle,
the most appropriate form of relief would be to ensure that the applicant
is granted in due course a retrial by an independent and impartial tribunal
(Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003).

B. Costs and expenses

41. The applicant also claimed EUR 3,000 for costs
and expenses incurred before the domestic courts and the Court, without
producing any supporting documents.

42. The Government did not make any comments on
this point.

43. The Court may make an award in respect of
costs and expenses in so far as these were actually and necessarily
incurred and were reasonable as to quantum (see, for example, Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).

44. Making its own estimate based on the information
available, and having regard to the criteria laid down in its case-law
(see, among other authorities, Vural v. Turkey, no. 56007/00, § 45, 21 December 2004), the
Court awards the applicant EUR 1,000 for the costs and expenses claimed.

C. Default interest

45. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the independence and impartiality
of the Ankara State Security Court admissible and the remainder of the
application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of
the Convention;

3. Holds that the finding of a violation constitutes in itself
sufficient just satisfaction for non-pecuniary damage sustained by the
applicant;

4. Holds

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, EUR 1,000
(one thousand euros) free of any tax that may chargeable in respect
of costs and expenses, to be converted into the national currency of
the respondent State at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing
on 6 September 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.